Gopi Yadav vs State of C.G.

Inder Singh Uboweja, J—Challenge in this appeal is to the judgment of conviction and order of sentence dated 14.03.2002 passed by the 41 Additional Sessions Judge, Raipur in Sessions Trial No. 303/2001, whereby and where under after holding the appellant guilty for culpable homicide not amounting to murder, learned trial Court has convicted the appellant under Section 304 Part-II of the IPC and sentenced him to undergo R.I. for seven years and to pay fine of Rs. 500/-, in default of payment of fine, additional R.I. for two months. Conviction is impugned on the ground that without there being an iota of evidence against the appellant, the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed an illegality.

As per case of the prosecution, the appellant and deceased - Tijau Ram were hoteliers and having some business dispute. On 08.03.2001 at about 3.45 p.m., appellant was eating Samosa and came to the hotel of deceased and mixed the used Samosa in the prepared material of the deceased hotel, as a result, here was some altercation took place between them. The appellant gave fist blows and caused multiple injuries over the chest of the deceased. Deceased fell down and succumbed to the injuries. Initially, he was brought to Nayapara for treatment, thereafter he was advised for better treatment and was admitted in Astha Hospital, Raipur till 08.03.2011 to 23.04.2001 where since there was no improvement, therefore, his family members got discharged and brought him at home, where he died on 26.05.2001. The incident was witnessed by Baratu (PW-4), Manglu (PW-6), Mannu and Baidu. Baratu (PW-4) went to police station Gobra Nayapara and lodged Dehati Nalishi vide Ex. P-4. On the basis of which, First Information Report (Ex. P-12) was registered. After death of Tijau Ram, police summoned the witnesses and prepared inquest over the dead body vide Ex. P-2. Spot map was prepared vide Ex. P-14. Dead body was sent for autopsy to Government Medical College, Raipur vide Ex. P-1. Dr. Ulhas Gonnade (PW-1) conducted autopsy vide Ex. P-1 and found following injuries and symptoms:-

(i) Rigor mortis present all over the body in disappearing phase;

(ii) Eyes open, cornea hazy, mouth open, lips apart, tongue inside;

(iii) One old scar over left maxillary prominence of 3 x 2.5 cm;

(iv) An old scar present 2.5 cm above occipital protuberance of 1 cm diameter;

(v) Bed scars present in between both glottal region of 8 c.m. x 4 c.m. Mode of death was infra cerebral haemorrhage due to cardio respiratory failure and it was homicidal in nature.

Statements of the witnesses were recorded under Section 161 of the Code of the Criminal Procedure, 1973 (for short ''the Code''). Patwari prepared spot map vide Ex. P-3. Treatment papers of Aastha Hospital, Raipur were seized vide Ex. P-18. Brain of deceased was seized vide Ex. P-19 and was sent to Medical College, Raipur for analysis.

After completion of investigation charge sheet was filed before the Court of Judicial Magistrate First Class, Raipur, who in turn committed the case to the Court of Sessions, Raipur from where learned Additional Sessions Judge, Raipur received the case on transfer for trial.

In order to prove the guilt of the accused/appellant, prosecution has examined as many as 13 witnesses. The accused was examined under Section 313 of the Code in which he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question is claimed.

After providing opportunity of hearing to the parties, learned 4th Additional Sessions Judge has convicted & sentenced the appellant as aforementioned.

I have heard learned counsel for the parties, perused the judgment impugned and record of the Court below.

Learned counsel for the appellant vehemently argued that he is not disputing the incident and death by homicidal in nature. According to the eyewitnesses of prosecution, the appellant gave his first blow and deceased fell down. Appellant caused only simple injuries. Deceased had died of not providing proper treatment, for that appellant is not responsible. Therefore, the act attributed to the appellant does not travel beyond the scope of Section 323 of the IPC. While convicting and sentencing the appellant under Section 304 Part-II of the IPC, the trial Court has not considered the aforesaid evidence and thereby committed an illegality. He placed reliance in the matter of Mithumal Vs. State of M.P. (Now C.G.) 2003(4) CGU 85 (DB) in which Division Bench of this Court has held that no arm was used by the appellant for assaulting the deceased. Thus, there does not appear to be either an element of intention or knowledge attributable to the appellant which may bring his act punishable even for commission of an offence of culpable homicide not amounting to murder - The conviction and sentence awarded to the appellant are altered to S. 302 IPC to S. 323 IPC.

On the other hand, learned State counsel opposed the appeal and supported the judgment of conviction and order of sentence passed by the trial Court.

In order to appreciate the arguments advanced on behalf of the parties, I have to examine the evidence available on record.

In the present case, homicidal death as a result of injuries found over the body of deceased - Tijau Ram has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Baratu (PW-4), Manglu (PW-6), Baidu (PW-7), Dehati Nalishi (Ex. P-4), FIR (Ex. P-12), Dr. Ulhas Gonnade (PW-1), Autopsy Report (Ex. P-1) that the death of deceased - Tijau Ram was homicidal in nature.

As regards complicity of the appellant in crime in question, conviction is substantially based on the evidence of Baratu (PW-4), Manglu (PW-6) and Baidu (PW-7). Baratu (PW-4) is the eyewitness of the incident. He has stated that the appellant had brought used Samosa and mixed it in the prepared material of the deceased hotel. Thereafter, the deceased and the appellant quarrelled each other, then the appellant assaulted the deceased by fist on his head and chest, he succumbed and fell down. At that time Moti, Mannu, his wife, Sanat and Baidu had seen the incident. Baidu (PW-7) has also corroborated the statement of Baratu (PW-4) and stated that when the appellant was fighting with the deceased, at that time other witnesses Manglu (PW-6), Motu (PW-5), Motiram (PW-8) and others were also present. Manglu (PW-6) has stated that the appellant was disputing with his mother then he interrupted at that time accused pushed the deceased. Motiram (PW-8) has not supported the incident. He has stated that he only heard about the incident. According to the evidence of Baratu (PW-4) and Baidu (PW-7), it is clear that the appellant has assaulted the deceased by hand and fist and as a result of which deceased was injured. Motu (PW-5) has stated that Baratu (PW-4) has informed him that the appellant has used fist and assaulted his brother deceased - Tijau Ram. Deceased succumbed and fell down. He also stated that the deceased was brought to Aastha Hospital, Raipur and was admitted there for about 1 1/2 months. Jiwandas Vaishnav (PW-3) has also supported the evidence of Motu (PW-5).

Dr. Rajesh Gupta (PW-9) was the Director of Aastha Hospital, Raipur. He has stated that deceased - Tijau Ram was brought to his hospital on 08.03.2001. At the time of admission, he was in unconscious condition. Left part of his body was not having any movement, his blood pressure was 200/110. His bed head ticket (Ex. P-8) was proved by this witness. In cross-examination, this witness has clearly stated that due to internal injuries, deceased-Tijau Ram was in unconscious condition. According to him, Tijau Ram was discharged on 23.04.2001 on the request of his relatives because there was no improvement. He remain unconscious on the date of discharge. Dr. Ulhas Gonnade (PW-1) has stated that he has seen only three injuries over the body of the deceased. He has proved his autopsy report vide Ex. P-1.

It is clear from the evidence of the prosecution witnesses that the accused was not armed with any weapon. He went to the hotel of the deceased and after some dispute he assaulted him by fist. It is difficult to assume that by using such assault accused had any intention to cause an offence of culpable homicide not amounting to murder though he could be attributed with or without knowledge that his act would cause death of the victim. Appellant was not armed with any weapon and in the entire episode, he used hands and fists. Evidence of prosecution witnesses shows that there was no preparation, or premeditation on the part of the appellant to commit murder of the deceased. Thus, there was no intention or knowledge to the appellant to commit murder of the deceased.

It is also clear from the evidence of the prosecution witnesses that death of Tijau Ram has occurred after two and half months of the incident. It is also clear from the evidence of the prosecution witnesses that his family has not tried to continue his treatment and he was not given due and proper treatment after discharging from Aastha Hospital, Raipur. The evidence of prosecution witnesses clearly revealed, especially from the query report (Ex. P-16) that the injuries of deceased may lead his death, if immediate treatment was not provided to him. Tijau Ram was admitted in Aastha Hospital, Raipur from 08.03.2001 to 23.04.2001 after that he died on 26.05.2001.

I am of the view that in the above facts and circumstances of the case an offence under Section 304 Part - II of the IPC would not be made out and the appellant would be liable for punishment under Section 325 of the IPC. Under the coverage definition of Section 320(8) of the IPC, case of the appellant comes under the purview of grievous hurt.

In the result, the appeal is partly allowed. Conviction and sentence of the appellant under Section 304 Par-II of the IPC is hereby set aside. Instead thereof, he is convicted under Section 325 of the IPC and senesced to undergo R.I. for two years and to pay fine of Rs. 5,000/-, in default of payment of fine, to undergo additional R.I. for one year. The appellant was in custody for some period. He is entitled to set off under Section 428 of the Code. It is stated that the appellant is on bail. He shall immediately surrender before the trial Court for serving remaining jail sentence imposed upon him. Trial Court shall also take appropriate steps for attendance of the appellant for serving remaining sentence.